Shaky Grounds for Prop. 8 Ruling

Two of three judges on a 9th U.S. Circuit Court of Appeals panel on Tuesday found Proposition 8 unconstitutional. Judge Stephen Reinhardt stipulated that the ruling skirted the larger issue of whether same-sex couples have a right to marry. That’s a shame, because at least an equal-right-to-marry claim makes for a clean argument.

Reinhardt praised himself for overturning Prop. 8 on “the narrowest ground.” It is also on the shakiest ground. The narrow ruling is based on the fiction that Prop. 8 eliminated a right without a legitimate reason. Prop. 8 was born of “animosity toward the class of persons affected,” he wrote.

The worst part is that if it were not for political shenanigans and judicial activism, Reinhardt would not be able to reason as he wrote.

A quick history lesson: In 2000, 61 percent of Californians voted for Proposition 22, which prohibited same-sex marriage.

In 2004, then-Mayor Gavin Newsom decide to ignore state law and opened San Francisco City Hall to same-sex marriages. Later, the state Supreme Court ordered Newsom to stop the illicit nuptials and invalidated Newsom-issued marriage licenses. Some gay newlyweds appealed.

In 2008, in a 4-3 decision, the California Supreme Court found that marriage is a fundamental right for all. Some 18,000 same-sex couples tied the knot. And they are still married.

Meanwhile, that same year, opponents of same-sex marriage fought back by placing on the ballot a constitutional amendment to ban it. Some 52 percent of California voters approved the measure.

In 2009, the state Supreme Court upheld Prop. 8 and the right of the people to write their own state constitution, in a 6-1 decision.

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“Prop. 8 didn’t take away any right that the state constitution ever really conferred,” noted Ed Whelan, president of the Ethics and Public Policy Center, an advocacy group. “By adopting Prop. 8, the people of California exercised their sovereign power to correct the state Supreme Court’s misreading of the constitution.”

Because Newsom had flouted state law, there was a hiatus between the decision that allowed same-sex marriage and the decision that banned it. That allowed the judges to maintain their construct that Prop. 8 took away something that only existed because Newsom had gamed the system.

Dissenting Judge N. Randy Smith was not impressed. As he pointed out, unless given no other option, federal courts should defer to state law.

Reinhardt and Judge Michael Hawkins did make two smart findings: They ruled that Walker did not have to vacate his anti-Prop. 8 ruling because of his being gay. (Who would be the next target, Catholic judges?)

They determined that because state officials (i.e., Govs. Arnold Schwarzenegger and Jerry Brown) refused to represent the voters in court, Prop. 8 proponents had a right to argue for the measure. As a result, the Prop. 8 case should reach the U.S. Supreme Court sooner rather than later.

“It’s simply one step along the way,” opined Jesse Choper, a University of California, Berkeley law professor.

When the California Supreme Court ruled in favor of same-sex marriage, Newsom stood on the steps of City Hall crowing, “It’s going to happen — whether you like it or not.” Newsom didn’t bother trying to win Californians over to his cause. He figured the courts would impose same-sex marriage on them. And then voters don’t have to like it.